The Next Heller Case? Wilson v. Cook County Goes to Trial

[mmckee1952]

Gun advocates in states that still have assault weapons bans have been wondering when some brave soul will sue to overturn those laws. Under the landmark DC vs. Heller case, the Second Amendment was interpreted as protecting an individual right to keep and bear arms in common use, subject to reasonable restrictions. Now, solo practitioner Victor Quilici and a small but dedicated legal team have a good test case in Illinois. The Illinois Supreme Court just ruled earlier this month that Wilson v. Cook County will go to trial.


These men and women will likely decide the fate of Wilson v. Cook County.

The Case

Theoretically, the case is simple. There are three plaintiffs suing the state of Illinois. Matthew D. Wilson, Troy Edhlund, and Joseph Messineo are three guys you’ve probably never heard of. Take note of their names. They are the ones with the guts to take on the entrenched political machine that is the Illinois court system. Their case is simple in theory. They argue that the Cook County assault weapons ban violates the Second Amendment of the Constitution of the United States of America. The Cook County Commissioners originally enacted the ban in 1993 after a Finding of Public Health and Welfare Concern, and amended it in 2006 after the expiration of the federal assault weapons ban. Among other things, it bans 60 firearms by name, bans magazines holding over 10 rounds, and bans assault ammunition, whatever that is. It also imposes a characteristic-based test for whether a firearm is legal or not based on whether the gun has certain cosmetic features such as folding stocks and flash hiders. The three plaintiffs are all law-abiding gun owners with valid Illinois FOID cards and clean criminal records, suing for the future ability to own firearms that now violate the Cook county ordinance. They are not bad guys caught with illegal guns trying to use the Second Amendment to stay out of jail.

The Appeal

The lower courts threw out the Wilson case before it even got to trial. They wrote that because there were other rulings in other states upholding similar bans, there was no way that the plaintiffs’ argument could win in Cook County either. They didn’t want the case to see a full hearing on the record. The Wilson legal team argued that these rulings really meant, “We can violate your rights as long as other places violate them the same way,” and they refused to give up. They argued all the way up the legal food chain to the Illinois Supreme Court. Once there, another legal case based on Heller helped them out. In 2010, that same Illinois Supreme Court had ruled that the Second Amendment rights as decided in Heller extended to all the states. The McDonald v. Chicago ruling overturned Chicago’s longstanding handgun ban. Arguments for the Wilson case stood on the shoulders of Heller and McDonald. On April 6, the Illinois Supreme Court ruled that Wilson v. Cook County should go back to the beginning and be granted a full and fair trial in front of the original circuit court.

The Risk

Going forward with Wilson carries a great deal of risk. It’s like a championship boxing match with 12 rounds, and our side just finished real strong as the bell rang to end round three. The venue could not possibly be more hostile. The trial will occur in front of the same court that already threw out the case once before, saying it stood no chance to win. Expect a loss at the circuit court level, and another loss in the appeals courts, before the main event finishes in front of the Illinois Supreme Court one more time. Someone is going to get knocked clean out of the ring when the final ruling is made, and it could be us. A well-reasoned ruling that assault weapons bans are “reasonable restrictions” under Heller would create a powerful precedent. Anti-gun lawyers and courts would use that precedent to justify a wide variety of gun control measures, possibly for years to come. A Wilson loss at the Illinois Supreme Court level could even undermine the weight of the Heller and McDonald decisions.

The Reward

The Wilson plaintiffs and their hard-working attorneys believe that the potential rewards of a win outweigh the risks of a loss. A final ruling overturning the Illinois assault weapons ban as unconstitutional under the Second Amendment would have a cascading effect on other ban states. Lawyers in California, New York, Connecticut, New Jersey, and other states would attack those states’ gun control schemes using Wilson as their platform. Potentially, a domino effect could occur in the coming years as assault weapons bans around the country fall one by one to 2nd Amendment attacks piling up on top of each other.

As Second Amendment advocates, we should all be interested in the progress of Wilson v. Cook County as it goes to trial and then through the appeals system. Citizens living in states with restrictive bans on firearms based on ammo capacity and cosmetic features should be especially interested. What happens to Illinois after Wilson is likely to happen in their state next–either way.

[eagleeyes]

that article got me wondering if mags holding 13 rounds is illegal in florida
time to do my homework on that
does anyone know if it's legal or not and any links or statute i may have overlooked as to how many rounds is legal in a conceal carry weapon in florida?
thanks in advance

[BluesStringer]

The Risk

Going forward with Wilson carries a great deal of risk. It’s like a championship boxing match with 12 rounds, and our side just finished real strong as the bell rang to end round three. The venue could not possibly be more hostile. The trial will occur in front of the same court that already threw out the case once before, saying it stood no chance to win. Expect a loss at the circuit court level, and another loss in the appeals courts, before the main event finishes in front of the Illinois Supreme Court one more time. Someone is going to get knocked clean out of the ring when the final ruling is made, and it could be us. A well-reasoned ruling that assault weapons bans are “reasonable restrictions” under Heller would create a powerful precedent. Anti-gun lawyers and courts would use that precedent to justify a wide variety of gun control measures, possibly for years to come. A Wilson loss at the Illinois Supreme Court level could even undermine the weight of the Heller and McDonald decisions.

Good post. Thanks for it. (If the post is your own work, you're a great writer and a welcome asset to the board. If the post is reprinted from another source, please provide attribution and a link. Either way though, it's great info to have.)

The arguments against proceeding with the case, as you describe them, are basically the same arguments the NRA put forth for actively opposing Heller. Is the NRA on board with this one, or are they taking another risk-averse stance against it?

The Reward

The Wilson plaintiffs and their hard-working attorneys believe that the potential rewards of a win outweigh the risks of a loss. A final ruling overturning the Illinois assault weapons ban as unconstitutional under the Second Amendment would have a cascading effect on other ban states. Lawyers in California, New York, Connecticut, New Jersey, and other states would attack those states’ gun control schemes using Wilson as their platform. Potentially, a domino effect could occur in the coming years as assault weapons bans around the country fall one by one to 2nd Amendment attacks piling up on top of each other.

As Second Amendment advocates, we should all be interested in the progress of Wilson v. Cook County as it goes to trial and then through the appeals system. Citizens living in states with restrictive bans on firearms based on ammo capacity and cosmetic features should be especially interested. What happens to Illinois after Wilson is likely to happen in their state next–either way.

I only have one small disagreement with the premise of some of this. I think it has to go to SCOTUS before it has the potential to spread as far and wide as you suggest here. State-level courts are allowed to make and interpret laws that differ greatly from other states. Unless SCOTUS takes over the autonomous nature of Illinois' gun control laws, it is just that; autonomous. It can be used in other states as a citation to buttress an argument, but I don't think it's fair to say that it would serve as any kind of binding precedent. And besides, for as long as it remains at the state Supremes level, SCOTUS can overturn that single state law, or a whole slew of similar state laws with just one ruling. All I'm saying is, win or lose, it seems to me this case will have to be heard by SCOTUS before it has any national significance.

Blues

[S&W645]

that article got me wondering if mags holding 13 rounds is illegal in florida
time to do my homework on that
does anyone know if it's legal or not and any links or statute i may have overlooked as to how many rounds is legal in a conceal carry weapon in florida?
thanks in advance

Florida has no mag limits except for hunting.

[BluesStringer]

After reading another one of the original poster's threads and seeing it revealed that he completely lifted a whole article from "Cheaper Than Dirt's" blog site, it made me curious and I searched for the title of this thread. The very first result went to Cheaper Than Dirt's blog.

Now, the byline on the posting at CTD says it was posted (and I presume authored by) "CTD Mike." By trying to give the OP every benefit of the doubt possible, his screen name, "mmckee1952" may very well refer to a "Mike McKee" or something, I don't know, and it's possible that he could be "CTD Mike" and have every right to post his own work here or anywhere else.

However, if this is not the work of mmckee1952, all I can say is your post is very bad form, sir. Especially after being asked (by me) about it a few days ago.

I strongly suggest that the OP either provide attribution for his cut and pastes if they are not his own work, or sign his posts with something like "CTD Mike, aka: mmckee1952" if they are his work.

I have taken note before on this site that plagiarism is not seen as a big deal by many folks. Perhaps I am over-sensitive to it because I do have copyrighted works to protect, but in any case, it always bugs me when I see unattributed works for which the true author should be given attribution and credit. When I see a pattern by individual posters of ignoring that simple rule of both etiquette and law, I start taking all of their posts as not credible.

Blues

ETA: After hitting "Submit Reply" to this post, I noticed another one that also came from CTD's blog, without attribution, only this one has the byline of "CTD Suzanne."

[mmckee1952]

Bluesstringer, I'm sorry I didn't say I got it from Cheaper than dirt, but don't get your panties all in a knot, I'll make sure in the future I make sure where I obtain my info, all I wnat to do is get any anitgun ifo out ther for everyone to see it for what it is and what we need to do to make sure we don't know what's going on around us.